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The following is issued on behalf of the Judiciary:

    Rules recently developed by judges in Hong Kong aimed at controlling the activities of vexatious litigants provide a good example of the common law at work in the context of constitutional rights guaranteed by the Basic Law, the Hon Mr Justice Ribeiro, Permanent Judge of the Court of Final Appeal, said today (May 20).

    Delivering a public lecture entitled "Vexatious Litigants" at the University of Hong Kong, Mr Justice Ribeiro said that after 1997 the Hong Kong courts have retained their traditional common law role of developing legal principles to meet changing social needs.

    He explained that vexatious litigants are persons who persistently abuse the court's process, misusing its procedures for improper purposes or in an oppressive manner and without any viable legal basis. They present a substantial problem in Hong Kong.

    He gave as an example one litigant who had a dispute with a bank which led to 22 different legal actions being commenced between 2001 and 2004. She sued not merely the bank and its solicitors, but many others, including the Commissioner of Police, a newspaper, the Hospital Authority, the judges who had given decisions against her, the Judiciary Administrator and individual court and registry clerks and the Secretary for Justice. Over 100 summonses were issued during this period, with at least 26 appeals from the master to the Court of First Instance and at least 30 appeals to the Court of Appeal, as well as several attempts to take the case to the Court of Final Appeal.

    Mr Justice Ribeiro estimated that our courts had come across about a dozen different vexatious litigants since 1997, with as many as five or six being active at any one time.

    He pointed out that such conduct diverts limited judicial resources to deal with nonsensical claims which are to no one?s benefit. It delays other litigants with bona fide disputes to resolve and oppresses the persons vexed by the litigation by forcing them to waste time, money and effort in defending these claims.

    The courts have come to recognise that previously existing legal procedures were insufficient to deal with such abuse. Legislative changes were recommended by the Chief Justice's Working Party on Civil Justice Reform, but legislation is likely to take some time.

    The courts have acted in the meantime, turning to well-established common law powers within their inherent jurisdiction to prevent abuse of process as the basis for developing rules restricting the activities of persistent abusers.

    However, doubts were initially raised as to whether the court could develop such powers, in light of the constitutional right of access to the courts and general principles requiring the courts to hear the parties appearing before them.  

    The Court of Final Appeal in Hong Kong, like courts elsewhere, has affirmed the constitutional and legal validity of such restrictive orders, stressing that judges must differentiate between persons seeking bona fide access to the court with genuine disputes to resolve and persons who are merely abusing the court's processes. Curbing the abuse of process does not involve any denial of the constitutional right of access to the courts.

    Mr Justice Ribeiro said that accordingly, when persistent abuse of the process is encountered, the courts now have power to make orders restricting the ability of abusive litigants to issue further applications or to commence fresh actions to re-litigate cases that have already been concluded. Where such restrictive orders are made, new applications or proceedings can only be brought with the leave of a designated judge, after permission is applied for in writing. Rights of appeal against refusal of leave can also be restricted by the Court of Appeal.

    In this way, it is hoped that other parties will be spared vexation and that abusive court hearings will be significantly reduced. The Chief Justice has recently issued a Practice Direction giving guidance on the new rules and how they should be operated.

    Mr Justice Ribeiro considered it likely that such new powers would help considerably in controlling vexatious litigants. The development of those powers exemplifies the continuing vitality of the common law in Hong Kong.

    However, he emphasised that legislative changes were still needed to enable any affected litigant to apply for a wide ranging and statutory restrictive order prohibiting any new proceedings without leave.

    He also pointed out that in extreme cases, even the new restrictive orders may be insufficient. Where the abuse involves interference with the administration of justice in a manner constituting a contempt of court, the court may have to resort to stronger powers. It may have to issue injunctions restraining vexatious litigants from entering the court's precincts or approaching court staff without the prior written permission of the court, and so forth. Such powers are also part of the court's inherent jurisdiction and disobedience could lead to committal proceedings or other punishments for contempt.

    The lecture by Mr Justice Ribeiro, the second one in a series concerning the common law, was attended by judges, legal practitioners, academic staff and students.

Ends/Friday, May 20, 2005

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